Opinion
MMXCV176018174S
08-29-2018
CONNECTICUT STATE POLICE UNION, INC. et al. v. Dora B. SCHRIRO et al.
UNPUBLISHED OPINION
OPINION
Domnarski, J.
The plaintiff Sergeant Andrew Matthews of the Connecticut State Police (State Police) is the president of the plaintiff Connecticut State Police Union, Inc. (Union). On July 7, 2017, the plaintiffs filed a two-count complaint against the defendants, State of Connecticut Department of Emergency Services and Public Protection (DESPP); Dora B. Schriro, individually and in her capacity as Commissioner of DESPP; Stephen P. Castagliuolo, individually; Michael Darcy, individually; and Michael Thomas, individually.
When applicable, the defendants Schriro, Castagliuolo, Darcy, and Thomas will be referred to as the "individual defendants."
Count one alleges that the individual defendants retaliated against the plaintiffs for speaking out on matters of public concern in violation of the first amendment to the United States constitution, enforced by 42 U.S.C. § 1983 (2006). Count two alleges that DESPP disciplined Matthews for engaging in associational activity and speaking on matters of public concern in violation of the first amendment to the United States constitution and articles first, § § 3, 4, and 13, of the Connecticut constitution, enforced by General Statutes § 31-51q.
On September 25, 2017, the defendants filed a motion to dismiss and a memorandum of law in support. The individual defendants move to dismiss count one of the complaint on the ground of qualified immunity, and DESPP moves to dismiss count two of the complaint on the ground of sovereign immunity.
In count one, the allegations must be deemed admitted for purposes of this motion to dismiss. The court concludes that, in light of the allegations pertaining to intent, the individual defendants’ claim that they are entitled to qualified immunity on the basis of objective reasonableness of their actions cannot be determined by this motion. In count two, the plaintiffs are required to allege a proper and sufficient factual basis to establish that Matthews was subjected to "discipline" in order to invoke the waiver of sovereign immunity provided in § 31-51q. The court concludes that the plaintiffs failed to allege proper and sufficient facts to support that Matthews was the subject of "discipline" pursuant to § 31-51q.
FACTS
The following is a summary of the essential allegations contained in the lengthy complaint. In April 2012, DESPP sought to implement a plan to consolidate dispatch operations of the State Police. The plaintiffs engaged in activities to oppose the consolidation plan. The plaintiffs repeatedly called for the removal of the individual defendants from their respective command positions. In April 2015, Castagliuolo, Darcy, and Thomas were removed from their commands and, as a result, they resented the plaintiffs’ role in their removal from their command positions and conspired to retaliate against them.
On April 17, 2015, Castagliuolo was transferred to the Internal Affairs Unit of the State Police (Internal Affairs). Thereafter, on May 7, 2015, the Internal Affairs received an anonymous complaint dated May 2, 2015. The anonymous complaint stated that Matthews interfered in a State Police investigation of an incident that occurred in North Stonington, Connecticut on September 3, 2014 (incident). The incident involved a state trooper and damage to a motorist’s vehicle. The incident had been previously investigated by Internal Affairs, which had issued a final report in January 2015. The anonymous complaint alleged that Matthews "paid the victim an amount of money to cover the damage to his property and also gave him additional money not to make an issue of what happened." Pl.s’ Compl., ¶ 36.
On or about May 7, 2015, Castagliuolo initiated an Internal Affairs investigation into the anonymous complaint. On or about May 11, 2015, Thomas advised Castagliuolo that in September 2014, Trooper Jeff Meninno advised Thomas that Matthews had offered $5000 to the motorist in the incident to "make this go away." Pl.s’ Compl., ¶ 51. After prompting by Castagliuolo, the Chief States Attorney’s Office (CSAO) conducted an investigation into the anonymous complaint from December 2015 to February 2016. During the CSAO investigation, Matthews was subjected to a criminal investigation interview about his handling of the incident and incurred legal expenses. In February 2016, CSAO informed the defendants that no criminal charges would be brought as a result of the investigation.
The plaintiffs further allege that the defendants agreed to help attempt orchestrate the removal of Matthews as president of the Union through an investigation of Matthews’ use of union business leave and provided support to union members attempting to remove Matthews from office.
DISCUSSION
The parties have not filed affidavits in this matter; thus, the court must determine the issues in this motion to dismiss on the basis of the complaint alone. "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, ‘it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.’ " Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
I. COUNT ONE: 42 U.S.C. § 1983
The defendants move to dismiss count one of the complaint, alleging violations of 42 U.S.C. § 1983, on the ground of qualified immunity. Title 49 of the United States Code, § 1983, provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."
"To prove that a public employer unlawfully retaliated against an employee for their speech in violation of the First Amendment, the plaintiff must show that (1) the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest ... (2) he or she suffered an adverse employment action ... and (3) the speech was at least a substantial or motivating factor in the [adverse employment action] ..." (Citations omitted; internal quotation marks omitted.) Garcia v. Hartford Police Dept., 706 F.3d 120, 129-30 (2d Cir. 2013).
The individual defendants do not seriously contest that the plaintiffs have sufficiently pleaded an action under 42 U.S.C. § 1983. The individual defendants instead argue that count one must be dismissed on the ground of qualified immunity. The individual defendants rely on Jemmott v. Coughlin, 85 F.3d 61, 66 (2d Cir. 1996) for the following proposition: "The doctrine of qualified immunity provides that officers performing discretionary functions are immune from liability for civil damages if their conduct either did not violate clearly established rights of which a reasonable person would have known, or that it was objectively reasonable to believe that [their] acts did not violate these clearly established rights ... The doctrine is intended to strike a fair balance between (1) the need to provide a realistic avenue for vindication of constitutional guarantees ... and (2) the need to protect public officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." (Citations omitted; internal quotations marks omitted.)
The individual defendants also argue that the court lacks subject matter jurisdiction because Matthews did not allege an injury. The court requested additional briefing on this issue. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ..." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 750, 878 A.2d 384, cert. denied, 275 Conn . 920, 883 A.2d 1252 (2005). On its face, the plaintiffs have substantially alleged the elements of a 42 U.S.C. § 1983 claim for retaliation in an employment setting. "[C]hallenges to the legal sufficiency of a federal claim raised in Connecticut court properly are raised in a motion to strike." Harnage v. Murphy, Superior Court, judicial district of Hartford, Docket No. CV-14-5037637 (August 31, 2017, Elgo, J.).
The individual defendants argue that they are entitled to qualified immunity because their actions in conducting an investigation regarding the anonymous complaint, were objectively reasonable. This argument fails to take into account that the plaintiffs have alleged, in an employment setting, that the defendants acted intentionally to retaliate against them for the plaintiffs’ earlier actions, which brought about adverse consequences.
The discussion of qualified immunity at the summary judgment level in Aquavia v. Goggin, 208 F.Supp.2d 225 (D.Conn. 2002) is instructive. In Aquavia, the defendant argued that he was entitled to qualified immunity because it was objectively reasonable for him to reprimand an employee for non-office use of office equipment. The court stated, "[the defendant] argues that he is nonetheless entitled to qualified immunity, because he has adduce[d] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff[ ], could conclude that it was objectively unreasonable for [the defendant] to believe that he was acting in a fashion that did not clearly violate an established federally protected right ...
"This argument focuses principally on the propriety of disciplining employees for non-office use of office equipment. Here, however, the First Amendment violation complained of focuses on [the defendant’s] state of mind in that he is alleged to have issued the disciplinary warning with the intent to punish [the plaintiff] for speech on a matter of public concern ... Thus, the question is not whether a reasonable employer could have concluded the propriety of disciplining [the plaintiff] for using office equipment; instead, it is whether a reasonable employer could have determined that disciplining an employee in retaliation for protected speech was unlawful ...
"In Blue v. Koren, 72 F.3d 1075 (2d Cir. 1995), the Second Circuit addressed a claim of qualified immunity in which improper motive was an element of the claim and held that the plaintiff in such a case must proffer particularized evidence of direct or circumstantial facts ... supporting the claim of an improper motive in order to avoid summary judgment ... Here, as discussed above, the record reveals no other discipline in [the plaintiff’s] thirteen-year tenure with the town and repeated, overt use of town resources to keep logs on other town employees. This is sufficient particularized evidence of ... circumstantial facts ... supporting the claim of an improper motive ... and summary judgment on qualified immunity grounds is thus inappropriate." (Citations omitted; internal quotation marks omitted.) Aquavia v. Googin, supra, 208 F.Supp. 236-37.
In light of Aquavia, and the cases cited therein, the court is not required to accept the defendants’ claim that their actions were objectively reasonable, but must instead credit the plaintiffs’ allegations. The plaintiffs alleged that the individual defendants acted with the intent to retaliate against Matthews and the Union for exercising their free speech rights. In light of these allegations, which must be deemed admitted for purposes of this motion to dismiss, the court concludes that the defendants have not established their right to qualified immunity at this stage of the proceedings.
Moreover, the individual defendants also argue that the Union lacks standing to bring a 42 U.S.C. § 1983 and cite to Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011). Nnebe, however, is unpersuasive. The court stated: "It is the law of this Circuit that an organization does not have standing to assert the rights of its members in a case brought under 42 U.S.C. § 1983, as we have interpret[ed] the rights [§ 1983] secures to be personal to those purportedly injured." (Internal quotation marks omitted.) Id., 156. The court added: "[H]owever, nothing prevents an organization from bringing a § 1983 suit on its own behalf so long as it can independently satisfy the requirements of Article III standing ..." (Citation omitted.) Id. "It is well established that organizations are entitled to sue on their own behalf for injuries they have sustained ... To do so, the organization must meet ... the same standing test that applies to individuals ... [by] show[ing] actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision." (Citation omitted; internal quotation marks omitted.) Irish Lesbian & Gay Organization v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998).
In the present case, the Union alleged that DESPP high-ranking officials conspired to harm it because of the Union’s concerted activity on behalf of its members and because the Union and Matthews have made numerous public statements criticizing DESPP for jeopardizing public safety. At this stage, these allegations are sufficient to establish the Union’s standing to bring this 42 U.S.C. § 1983 action.
For the forgoing reasons, the motion to dismiss count one is denied.
II.
COUNT TWO: GENERAL STATUTES § 31-51q
DESPP moves to dismiss count two, alleging violations of § 31-51q, on the ground of sovereign immunity. Section 31-51q provides in relevant part: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4, or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge ..." (Emphasis added.)
The plaintiffs did not allege that Matthews was discharged; therefore, the following analysis is limited to whether DESPP’s actions amounted to "discipline" pursuant to § 31-51q.
A.
Sovereign Immunity
"[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). "In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." Id., 351.
Although the plaintiffs made a claim for declaratory and injunctive relief in their prayers for relief, the plaintiffs’ brief only casually mentions this claim in a footnote and did not extensively brief this issue. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (noting that trial court is "not required to review issues that have been improperly presented to [the] court through an inadequate brief" [internal quotation marks omitted] ). Even assuming that these claims were properly briefed, the plaintiffs failed to allege factual underpinnings to demonstrate an incursion upon constitutionally protected interests. See Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 350, 977 A.2d 636 (2009) ("[f]or a claim made pursuant to the second exception, complaining of unconstitutional acts, we require that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests" [internal quotation marks omitted] ); Miller v. Arnone, Superior Court, judicial district of New Haven, Docket No. CV-13-5034503-S (January 30, 2015, Wilson, J.) ("plaintiff cannot rely merely on the invocation of constitutional protections to defeat a claim of sovereign immunity, but rather must ... clearly demonstrate an incursion upon constitutionally protected interests" [citation omitted; internal quotation marks omitted] ); Mosby v. Norwalk Economic Opportunity Now, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-5014140-S (July 22, 2014, Karazin, J.T.R.) (plaintiff required to "clearly demonstrate an incursion upon constitutionally protected interests as is specifically required for the [second] exception to apply" [internal quotation marks omitted] ). Accordingly, the second exception to sovereign immunity does not apply.
"For a claim made pursuant to the first exception, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed ... Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity ... For a claim made pursuant to the second exception, complaining of unconstitutional acts ... we require that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests ... For a claim under the third exception, the plaintiffs must do more than allege that the defendants’ conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations ... In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Citations omitted; internal quotation marks omitted.) Id., 349-50.
As noted previously, "a party attempting to sue under the legislative exception must come clearly within its provisions, because [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed." (Emphasis added; internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 101-02, 680 A.2d 1321 (1996). The waiver of sovereign immunity found in § 31-51q is akin to the waiver of sovereign immunity found in the highway defect statute, General Statutes § 13a-144. Cases interpreting § 13a-144 have held that the statute "is to be strictly construed in favor of the state ... however, when a plaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity ... A complaint is subject to a motion to dismiss if the plaintiff does not satisfy the statute’s notice requirement ... or if the complaint alleges that the area where the injury occurred is not an area for which the state has a statutory duty to maintain and repair ... Similarly, if, accepting the allegations in the complaint as true, the court can conclude that, as a matter of law, the condition that allegedly caused the plaintiff’s injury does not constitute a highway defect within the scope of 13a-144, the court likewise should dismiss the complaint." (Citations omitted; emphasis added; internal quotation marks omitted.) Tyson v. Sullivan, 77 Conn.App. 597, 602, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003). Consequently, similar to § 13a-144, the plaintiffs here must have alleged sufficient facts to establish that Matthews was subjected to "discipline" and, therefore, come clearly within the provisions of § 31-51q.
B.
"Discipline" vis-a-vis § 31-51q
DESPP argues that the plaintiffs fail to allege sufficient facts to establish that Matthews was "disciplined" and, therefore, bring Matthews within the ambit of the statutory waiver of sovereign immunity provided in § 31-51q. Currently, there is no appellate authority providing guidance on the definition of "discipline" as it relates to § 31-51q. Several Superior Court cases have sought to define the term as used in the statute, including a case that involves essentially the same parties here. See Matthews v. Dept. of Public Safety, Superior Court, judicial district of Hartford, Docket No. CV-11-6019959-S (May 31, 2013, Peck, J.) (56 Conn.L.Rptr. 262). In that case, Matthews brought a § 31-51q action against this same employer and alleged that he was subject to acts of discipline, which were separate and apart from the actions complained of in this case. Specifically, the plaintiff alleged that he was "disciplined" as the result of earlier "whistleblowing" activities. The defendant filed a motion to strike the complaint on the ground that the plaintiff had failed to state a legally sufficient claim for relief under § 31-51q. See id., 266.
In Matthews, the court, Peck, J., reasoned: " ‘[D]iscipline’ requires an affirmative act by the employer and does not include the withholding of a benefit, even if promised. An omission cannot constitute discipline unless the employer had a duty to act for the employee. And the court also agrees in part that the ‘discipline’ required in § 31-51q likely is more substantial than the ‘discipline in any manner’ or acts that ‘discriminate against’ in § § 31-51g(b)(1) and 2-3a, as well as other statutes cited by the defendant. The question remains, however, as to precisely what level of affirmative conduct constitutes ‘discipline’ under § 31-51q. The legislative history provides no meaningful guidance. Thus, the matter turns largely on policy considerations.
"The court disagrees with the defendant that discipline requires ‘official’ action, and instead agrees with the plaintiff that ‘discipline’ can be a collection of smaller incidents and conduct, as long as that conduct is affirmative in nature. Section 31-51q creates a cause of action for damages to protect employees from retaliatory action illegally grounded in the employee’s exercise of enumerated constitutionally protected rights ... While the defendant correctly points out that this quote is not an endorsement of a particular definition of ‘discipline,’ it is useful in that it characterizes the type of activity with which § 31-51q is concerned. The statute is concerned with retaliatory activity against an employee. Whether an act is retaliatory deals more with the intent of the actor and the proposed effect of the act on the subject of the retaliation. It is entirely possible for an employer, through a series of unofficial acts, perhaps seemingly benign on their own, to seek retaliation. There is no apparent reason to limit such retaliatory conduct to official reprimand or single isolated events. Retaliatory action that is taken through multiple events can be just as, if not more, damaging to an employee and that employee’s freedom of expression. As long as those events can be shown to be affirmative act[s] of deprivation that diminish] the status or happiness of the recipient, and those acts were performed in response to the plaintiff’s speech, then it does not matter whether or not individually those acts might not qualify as ‘discipline.’ " (Citation omitted.) Id., 269-70.
Against this legal backdrop, the Matthews court reviewed the plaintiff’s allegations. Namely, "that [the plaintiff] was disciplined when the defendant (1) transferred him to a new position; (2) removed duties from him; (3) issued a performance appraisal that did not reflect his true performance; (4) refused to investigate threats made toward him; (5) designated him as the subject of ‘bogus’ internal and criminal investigations; (6) failed to provide him with a workspace; (7) failed to properly protect him from threats made by members of the state police; (8) caused him to lose overtime opportunities; and (9) denied him supervisory experience and failed to promote the plaintiff to master sergeant or lieutenant; and (10) selected oral examiners who were expected to give the plaintiff a failing grade on the oral portion of Sergeant/Lieutenant examination." Id., 270.
In determining whether the aforementioned allegations constituted "discipline" pursuant to § 31-51q, the court stated: "Some of the above acts clearly do not qualify as ‘discipline’ under § 31-51q. The mere failure to promote the plaintiff and give him supervisory experience cannot constitute ‘discipline’ as such conduct is clearly an omission and there is no duty on the employer to promote an employee. The other conduct, when construed in light most favorable to the plaintiff, qualifies as ‘discipline.’ Although in some situations a transfer to a new assignment may not be discipline, where that transfer is to a position that is so objectively undesirable it could be considered a demotion, then such a transfer could be ‘discipline.’ Likewise, a removal of duties is an affirmative act that could be considered a demotion in certain circumstances. The defendant’s alleged targeting of the plaintiff in ‘bogus’ investigations also would be a form of retaliatory discipline, assuming the plaintiff could show that the investigations were groundless and caused by the defendant’s desire to retaliate against the plaintiff’s speech. The selection of examiners who were expected to fail the plaintiff could also be an act of discipline as it was affirmative conduct meant to deprive the plaintiff of a fair chance for a promotion. Finally, although in a strict sense these acts might be an ‘omission,’ the defendant’s failure to investigate threats made toward the plaintiff and protect him from those wishing to do him harm could be ‘discipline’ because employers generally are supposed to protect employees from threatening or harassing coworkers ... Again, some of the conduct might not be discipline on its own, but when all the alleged conduct is aggregated and viewed in a light most favorable to the plaintiff, it can be inferred that the defendant was disciplining the plaintiff for speaking out on certain matters. While the plaintiff’s desire for a promotion is not protected, § 31-51q was clearly intended to protect an employee from de facto demotion and retaliatory employer actions that diminish the happiness and status of an employee." (Citation omitted.) Id.
This court finds the foregoing analysis, including the definition of "discipline," helpful in the determination of the present motion. Here, it is important to note what has not been alleged by the plaintiffs. Namely, the plaintiffs have not alleged that Matthews was subjected to an official act of discipline such as a demotion, suspension, or formal reprimand; nor have they alleged that any actions by Matthews’ employer brought about a negative change in his working conditions such as those alleged in Matthews. See id. For example, the plaintiffs have not alleged that Matthews was transferred to a different work location; removed from certain duties; received a poor performance appraisal; failed to receive a workplace; denied a supervisory experience; received a biased promotion exam; or that there was a refusal to investigate or protect him from threats made against him. Such allegations are not present here and, therefore, cannot be aggregated to support the plaintiffs’ allegations of "discipline" pursuant to § 31-51q.
Numerous paragraphs of the complaint detail actions by various defendants that revolve around the central allegation that Matthews was the subject of a criminal investigation conducted by CSAO. This investigation was a consequence of the anonymous complaint that the plaintiffs characterize as a false complaint. In their memorandum in opposition, the plaintiffs argue that the CSAO investigation was "bogus," similar to their claim of the investigations in Matthews. See id. The analysis of the "bogus" claims in Matthews, however, undercuts the plaintiffs’ argument here. In Matthews, the court reasoned: "The defendant’s alleged targeting of the plaintiff in ‘bogus’ investigations also would be a form of retaliatory discipline, assuming the plaintiff could show that the investigations were groundless ..." (Emphasis added.) Id., 270. On the basis of the plaintiffs’ allegations in this complaint, the plaintiffs have not sufficiently alleged facts that show that the investigation into the anonymous complaint was groundless. The anonymous complaint appears to be in written form and makes specific claims which are set forth in the plaintiffs’ complaint. Furthermore, the plaintiff alleges Trooper, Jeff Meninno, who is not a defendant in this case, made a statement which appears to corroborate the anonymous complaint. Under these circumstances, the subsequent investigation of the complaint cannot be considered groundless. The fact that the anonymous complaint did not bring about charges- and may have been false- does not make the investigation into it groundless or "bogus." The only alleged consequence to Matthews in connection with the anonymous complaint is that the CSAO, a separate organization from the plaintiffs’ employer, conducted an investigation during which Matthews was interviewed. Notably, the plaintiffs have not alleged that there was any other employment consequence that resulted from the investigation or interview.
The plaintiffs also allege that the defendants conducted a separate investigation into Matthews’ use of union business leave without his knowledge and that DESPP had no authority to investigate Matthews’ use of union business leave. Unlike the CSAO investigation, the plaintiffs have not alleged that Matthews was interviewed in connection with the union business leave investigation and have not alleged that his employment status or working conditions changed as a result of the investigation. Therefore, the plaintiffs have not pleaded sufficient facts to establish that the union business leave investigation constituted "discipline" pursuant to § 31-51q.
Although the plaintiffs have alleged that the CSAO and union business leave investigations involved various individuals and agencies over a period of time, these allegations do not constitute separate incidents of conduct, which must be viewed in the aggregate. Unlike the series of actions alleged in the earlier Mathews case, here there is a lack of affirmative actions by the DESPP to support a claim that Mathews was disciplined.
The plaintiffs also rely on Browne v. Dept. of Correction, Superior Court, judicial district of New Haven, Docket No. CV-17-6067843 (October 10, 2017, Ecker, J.) (65 Conn.L.Rptr. 333), for the proposition that investigations on the basis of false information is a form of "discipline." In that case, the plaintiff alleged that fellow employees filed false charges which, unlike the alleged facts here, resulted in his transfer to a less desirable assignment. The court defined "discipline" as "any adverse material consequence imposed by an employer on an employee for the purpose of punishing or deterring behavior that the authority wishes to suppress." Id., 335. In light of the foregoing review of the plaintiff’s allegations of "discipline," the court cannot find that the plaintiffs have alleged sufficient facts to establish that Matthews was subjected to "an adverse material consequence" amounting to discipline under § 31-51q.
The court concludes that the allegations pertaining to DESPP’s conduct vis-a-vis Matthews does not amount to, or constitute, discipline under § 31-51q. In the absence of sufficient facts to allege a statutory waiver of sovereign immunity under § 31-51q, the court does not have subject matter jurisdiction, and the motion to dismiss count two as to Mathew’s claims must be granted.
C.
Unions and § 31-51q
On the basis of the language of the complaint, the plaintiffs are seemingly alleging a violation of the Union’s rights under § 31-51q. The statute, however, is applicable only to "employees." The plaintiffs have not, and for obvious reasons cannot, allege that the Union is an employee of DESPP. Accordingly, the allegations against DESPP vis-a-vis the Union, in count two, must be dismissed on the ground of sovereign immunity.
As previously noted, General Statutes § 31-51q provides in relevant part: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4, or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge ..." (Emphasis added.) "The principal canon of statutory construction is that where the statutory language is clear and unambiguous, we interpret the statute to mean what it says ... Under such circumstances, we will look no further for interpretive guidance." (Citation omitted; internal quotation marks omitted.) Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn.App. 800, 804, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn . 404, 627 A.2d 931 (1993). Accordingly, § 31-51q is only applicable to employees of DESPP and not unions and/or other similar organizations.
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied as to count one, alleging claims brought by Matthews and the Union pursuant to § 1983, but is granted as to both plaintiffs in count two, alleging a violation of § 31-51q.